Loretta Herrera v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-07-00033-CR

Loretta HERRERA,

Appellant

v.

The STATE of Texas,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court No. 2006-CR-5005

Honorable Sharon MacRae, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: October 24, 2007

AFFIRMED AS MODIFIED

On December 11, 2006, pursuant to a negotiated plea, Appellant Loretta Herrera entered a plea of no contest to the charge of robbery. Subsequently, the trial court assessed punishment at five years confinement in the Institutional Division of the Texas Department of Criminal Justice (TDCJ). In her sole point of error, Herrera asserts that the trial court erred in denying the motion to suppress her recorded oral custodial statements because the State failed to comply with Article 38.22 of the Texas Code of Criminal Procedure. Herrera and the State request that this court reform the judgment of the trial court to eliminate the fine of $2,000.00. We affirm the judgment as modified.

Factual Background

In 2004, Detective Elizabeth Greiner, with the San Antonio Police Department cold case unit, received a phone call regarding the December 2000 death of Oscar Castillo, Sr. Greiner reinterviewed the original suspect, Juan Risendez, and two additional suspects, Ronnie Morgan and Loretta Herrera.

Greiner first interviewed Herrera, who was incarcerated at TDCJ on unrelated charges, on December 8, 2004. Because of other activities taking place at the facility, Greiner performed the interview in a vacant lunch area. Greiner testified that she placed the digital audio recorder inside of a file and placed the file on the table somewhere between Herrera and herself. Greiner read Herrera the Miranda warnings and Herrera signed a Miranda rights card. See Miranda v. Arizona, 384 U.S. 436 (1966). Greiner did not tell Herrera that she was being recorded.

Greiner interviewed Herrera a second time and similarly recorded the interview. On this occasion, however, Greiner placed the recorder inside of a briefcase that was sitting on the ground in between Herrera and herself. Prior to questioning, Herrera was again apprised of and acknowledged her Miranda rights.

Herrera's Right to Appeal

As an initial matter, the State asserts that Herrera failed to preserve her sole point of error because "[t]he exact complaint that Appellant is making on this appeal, . . . was not contained in this written pre-trial motion." To the extent that the State is asserting that Herrera has no right to appeal, we disagree.

Texas Rule of Appellate Procedure 25.2 provides that "[a] defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules." Tex. R. App. P. 25.2(a)(2). Rule 25.2(a)(2) further provides that in cases where there is a plea bargain and the punishment did not exceed the punishment recommended by the prosecutor, a defendant may appeal only those matters raised in a written pretrial motion that were ruled upon, or after getting the trial court's permission to appeal. Id.; see Salinas v. State, 224 S.W.3d 752, 755 (Tex. App.--San Antonio 2007, pet. ref'd) (holding that defendant could appeal a written motion to suppress filed and ruled on prior to the entry of a plea).

After the State reindicted Herrera on these charges, Herrera filed a motion to adopt all prior motions, including her motion to suppress "[a]ll written and oral statements made by LORETTA HERRERA to any law enforcement officers or others in connection with this case." In her motion to suppress, Herrera further stated that "[a]ny statements obtained from LORETTA HERRERA were obtained in violation of the rights of LORETTA HERRERA pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution . . . and Article 38.22 of the Texas Code of Criminal Procedure." At a hearing for pretrial motions, the following transpired:

[Defense Counsel]: I apologize. I forgot about those. I filed a motion to adopt those motions.

[Trial] Court: Yeah. I was just looking at that. All right. She's getting the motion. So we may as well just proceed.

[Prosecutor]: The State is ready on the motion to determine voluntariness of the defendant's statement and at this time [sic]. With permission of the Court, we call Detective Elizabeth Greiner.

[Trial] Court: All right. Detective.

[Defense Counsel]: Your Honor, I'd like to also - - while we have her - - talk about compliance with 38.22 as well.

[Trial] Court: Okay. We'll just take that all up together.

Based upon the filing of her motion to suppress, the hearing on the motion to suppress, and the trial court's findings of fact and conclusions of law, we conclude Herrera is appealing a matter raised in a written pretrial motion on which the trial court has ruled. Accordingly, pursuant to Texas Rule of Appellate Procedure 25.2, Herrera has a right to appeal the trial court's denial of her motion to suppress.

Motion to Suppress Recorded Oral Statements

Oral statements that are the result of a custodial interrogation are inadmissible unless they are reduced to writing. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). Article 38.22, however, provides a specific exception in which recorded oral statements may be admissible upon strict compliance with the statute's requirements. Id. More specifically, Article 38.22 3(a) sets forth five requirements the State must satisfy for a recording to be admissible. Id. The sole issue on appeal is whether the recording satisfied the third requirement, which provides:

(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;

Tex. Code Crim. Proc. Ann. art. 38.22 3(a)(3).

A. Standard of Review

In the present case, we review the trial court's denial of Herrera's motion to suppress the audio recording under the framework established in Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). If the question presented results from the trial court's determination of historical facts that the record supports, especially when the trial court's findings are based on an evaluation of credibility and demeanor, the appellate court must exercise almost total deference to the trial court's determinations. Id. at 89. Additionally, when the ultimate resolution of the application of law to fact questions turns on an evaluation of credibility and demeanor, an appellate court must similarly exercise deference to a trial court's determinations. Id. However, in reviewing the application of law to fact questions, where the resolution of the issue does not turn on an evaluation of credibility and demeanor, an appellate court determines the issue de novo. Id.

B. Analysis

Herrera filed a motion to suppress her recorded oral statements alleging that the State failed to satisfy Article 38.22 3(a)(3). At the suppression hearing, Greiner testified that the inaudible portions of the tape were due, not to any type of malfunction of the recording device, but to Herrera's mumbling. During cross-examination, defense counsel questioned Greiner as to why she simply did not ask Herrera to speak up. Greiner explained that she believed the inaudible portions were irrelevant and did not require clarification. At the close of Greiner's testimony, the recordings were offered to the trial court for review. The trial court found as follows: [i]t was a custodial interrogation, that based upon the testimony of the officer as well as the recordings, that they did comply with 38.22 in all respects in giving the warnings required to Ms. Herrera, that she voluntarily waived her rights and spoke to the officers on each occasion. And I'm going to find that the statements were voluntary and admissible at trial.

In Maldonado v. State, the Court of Criminal Appeals addressed the issue of admissibility of a tape-recorded confession where the recording had two skips or anomalies. 998 S.W.2d 239, 244 (Tex. Crim. App. 1999). In holding that the tapes were admissible, the court noted that the skips occurred during portions of the tape that were irrelevant to the confession, such as the discussion of a different crime. Id. at 245. The court found that there was "adequate evidence" to support the conclusion "that the anomalies were merely inadvertent and did not affect the overall reliability of the tape." Id. The court based its conclusion on the absence of evidence of bad faith or impermissible alteration of the recording by the police officers. Id.

In comparison, the number of inaudible portions in the present case exceeds those in the Maldonado case. Nonetheless, because this is a question of credibility and weight of a witness's testimony, we assume that the trial court found the inaudible portions did not occur during the relevant portions of Herrera's statements and did not show any type of unreliability on the part of the recording. See Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005) (stating that "[w]hen there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court's ruling").

It was the trial court's decision whether to believe Greiner's testimony that the inaudible portions were due to Herrera's mumbling and were during irrelevant portions of the recording. See Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007) (holding that it was within the trial court's discretion to believe the testimony of an officer over the appellant's testimony). Further, like Maldonado, the record contains no evidence of bad faith or impermissible alteration of the recording by the police officers. Maldonado, 998 S.W.2d at 245. Accordingly, we are unable to conclude that the trial court erroneously denied Herrera's motion to suppress. We overrule Herrera's point of error.

Reformation of Judgment

Herrera and the State request this court to reform the judgment and sentence of the trial court because it incorrectly imposes a fine of $2,000.00. Texas Rule of Appellate Procedure 43.2(b) gives an appellate court the power to modify a trial court's judgment and affirm it as modified. Tex. R. App. P. 43.2(b). "Where [the appellate court] has the necessary data and evidence before it for reformation, the judgment and sentence may be reformed on appeal." Knight v. State, 581 S.W.2d 692, 694 (Tex. Crim. App. 1979).

In the present case, the trial court announced, in open court, a punishment of five years confinement in the Institutional Division of the Texas Department of Criminal Justice. Although the oral pronouncement did not include a fine, the trial court's written judgment and sentence imposed a $2,000.00 fine. When there is conflict between the oral and written pronouncement of a trial court, the oral pronouncement controls. Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (deleting a fine that was not orally pronounced by the trial court but contained in the trial court's written judgment). Because the trial court's oral pronouncement did not include a fine, but the written judgment did, we modify the judgment to delete the imposition of the fine. Conclusion

We modify the trial court's judgment to eliminate the imposition of the $2,000.00 fine. In all other respects, the judgment of the trial court is affirmed.

Rebecca Simmons, Justice

Do Not Publish